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NDC vs.

Commisioner Doctrines: The residence of the obligor who pays the interest rather than the physical location of the securities, bonds or notes or the place of payment is the determining factor of the source of interest income. Tax exemptions cannot be merely implied but must be categorically and unmistakably expressed. Any doubt concerning this question must be resolved in favor of the taxing power. Facts: The National Development Company entered into contracts in Tokyo with several Japanese shipbuilding companies for the construction of twelve ocean-going vessels. The purchase price was to come from the proceeds of bonds issued by the Central Bank. Initial payments were made in cash and through irrevocable letters of credit. Fourteen promissory notes were signed for the balance by the NDC and, as required by the shipbuilders, guaranteed by the Republic of the Philippines. Pursuant thereto, the remaining payments and the interests thereon were remitted in due time by the NDC toTokyo. The NDC remitted to the shipbuilders in Tokyo the total amount of US$4,066,580.70 as interest on the balance of the purchase price. No tax was withheld. The Commissioner then held the NDC liable on such tax in the total sum of P5,115,234.74. Negotiations followed but failed. The BIR thereupon served on the NDC a warrant of distraint and levy to enforce collection of the claimed amount. The NDC went to the Court of Tax Appeals, which sustained the ruling of the BIR, save some slight reductions of the tax deficiency in the amount of P900.00. The NDC went to the Supreme Court in a petition for certiorari. Issues: 1. Whether or not the Japanese shipbuilding companies are liable for taxes. 2. Whether or not a tax exemption was granted in this case due to the guarantee made by the Republic of the Philippines. Held: 1. The Japanese shipbuilders were liable to tax on the interest remitted to them under Section 37 of the Tax Code. The petitioner argues that the Japanese shipbuilders were not subject to tax under the above provision because all the related activities (the signing of the contract, the construction of the vessels, the payment of the stipulated price, and their delivery to the NDC) were done in Tokyo. The law, however, does not speak of activity but of "source," which in this case is the NDC. This is a domestic and resident corporation with principal offices in Manila. As the Tax Court put it: “It is quite apparent, under the terms of the law, that the Government's right to levy and collect income tax on interest received by foreign corporations not engaged in trade or business within the Philippines is not planted upon the condition that 'the activity or labor and the sale from which the (interest) income flowed had its situs' in the Philippines. The law specifies: 'Interest derived from sources within the Philippines, and interest on bonds, notes, or other interest-bearing obligations of residents, corporate or otherwise.' Nothing there speaks of the 'act or activity' of non-resident corporations in the Philippines, or place where the contract is signed. The residence of the obligor who pays the interest rather than the physical location of the securities, bonds or notes or the place of payment is the determining factor of the source of interest income.” 2. It is also incorrect to suggest that the Republic of the Philippines could not collect taxes on the interest remitted because of the undertaking signed by the Secretary of Finance in each of the promissory notes that: “Upon authority of the President of the Republic of the Philippines, the undersigned, for value received, hereby absolutely and unconditionally guarantee (sic), on behalf of the Republic of the Philippines, the due and punctual payment of both principal and interest of the above note.” There is nothing in the above undertaking exempting the interests from taxes. Petitioner has not established a clear waiver therein of the right to tax interests. Tax exemptions cannot be merely implied but must be categorically and unmistakably expressed. Any doubt concerning this question must be resolved in favor of the taxing power. WHEREFORE, the appealed decision is AFFIRMED, without any pronouncement as to costs. It is so ordered. Commissioner vs. BOAC

Topic: Test of taxability of income of resident foreign corporations. Facts: British Airways, a foreign company, is protesting a deficiency income tax assessment by the Commissioner of Internal Revenue for the period covering the years 1959-1963. It contends that although it maintained a general sales agent in the Philippines which was responsible for selling British Airways tickets covering passengers and cargoes, it did no tactually carry passengers and/or cargo to or from the Philippines within the stated period and thus should not have been assessed taxes. Issues: 1. W/N British Airways was a resident foreign corporation doing business in the Philippines during the stated period.

2. W/N the revenue of British Airways from ticket sales in the Philippines for air transportation constitute income of British
Airways subject to taxation in the Philippines, although they did not actually carry passengers and/or cargo to or from the Philippines within the stated period. Ruling: 1. YES. During the stated period, British Airways maintained a general sales agent in the Philippines which exercised functions which are normally incident to, and are in progressive pursuit of, the purpose and object of its organization as an international air carrier. In fact, its main activity, the regular sale of tickets, is the very lifeblood of the airline business, the generation of sales being the paramount objective. Accordingly, it is a resident foreign corporation subject to tax upon its total net income received in the preceding taxable year from all sources within the Philippines, according to Section 24(b)(2) of the same Code.2.

2. YES. The absence of flight operations to and from the Philippines is not determinative of the source of income or the site of income taxation. The test of taxability is the ³source,´ and the source of an income is that activity which produced the income. Even if the British Airways tickets sold covered the ³transport of passengers and cargo to and from foreign cities,´ it cannot alter the fact that income from the sale of tickets was derived from the Philippines. The passage documentations in these cases were sold in the Philippines and the revenue there from was derived from an activity regularly pursued within the Philippines. The word ³source´ conveys one essential idea, that of origin, and the origin of the income herein is the Philippines. Note: Although there is no specific criterion as to what constitutes ³doing´ or ³engaging in´ or ³transacting´ business as stated under Section 20(h) of the 1977 Tax Code, the terms imply a continuity of commercial dealings and arrangements, and contemplates, to that extent, the performance of acts or works or the exercise of some functions normally incident to, and in progressive prosecution of, commercial gain or for the purpose and object of the business organization